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Harvest v. Craig5/11/1999
What the record does not establish is that Dr. Craig ever inquired of Dr. Rojas about Ms. Harvest's medical history. Dr. Craig does not affirmatively assert that he did inquire, and Dr. Rojas testified in deposition that she did not convey the history to Dr. Craig. From these circumstances, we can infer that Dr. Craig did not seek any medical history from Dr. Rojas. We also note that when contacted by Dr. Craig, Dr. Rojas remembered Ms. Harvest and knew that she was not quite to term. This tends to indicate that even though Dr. Rojas was at home, she might have if asked been able to convey pertinent information which could have impacted the subsequent decisions made by Dr. Craig.
The trial court apparently based its ruling that medical information was not reasonably available solely on the fact that Dr. Rojas was at home, without immediate access to Ms. Harvest's medical records. While it is not necessarily unreasonable to draw such an inference, our analysis demonstrates that the contrary is also reasonably inferable; namely, that Dr. Rojas could have, if asked, conveyed pertinent medical information to Dr. Craig. In light of these competing inferences, it cannot be said that appellees sustained their burden of showing that Ms. Harvest's medical information was not reasonably available. See Republic Insurance Co. v. Feidler, 178 Ariz. 528, 534, 875 P.2d 187, 193 (App. 1993) (in the face of competing reasonable inferences, summary judgment is not proper). Therefore, we conclude that appellees did not establish their entitlement to the enhanced burden of proof granted by section 32-1473, and the trial court erred in so holding.
CONCLUSION
Because the trial court erred in applying a clear and convincing standard to appellants' claim, and because we cannot say on this record as a matter of law that appellants' claim failed to meet the preponderance of the evidence standard, we reverse the trial court's grant of summary judgment to appellees and remand the case for further proceedings.
James B. Sult, Judge
CONCURRING: Sarah D. Grant, Presiding Judge Susan A. Ehrlich, Judge
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